The Protection of Traditional Foods in the EU: Traditional Specialities Guaranteed

• Published date: 01 July 2013
• Author: Andrea Tosato
• Date: 01 July 2013
• DOI: http://doi.org/10.1111/eulj.12040

The Protection of Traditional Foods in the

EU: Traditional Specialities Guaranteed

Andrea Tosato*

Abstract: Since the dawn of the common market, the European Union has enacted

abundant legislation regulating the employment of specific food names. This process has

led to the introduction of a regulatory framework for wines and spirits, and four quality

schemes for food products: protected denominations of origin (PDO), protected geo-

graphical indications (PGI), traditional specialities guaranteed (TSG), and optional

quality terms (OQT). This paper focuses on the TSG. It will first determine the

collocation of this quality scheme in the EU legal framework; second, it will conduct a

legal exegesis of the norms regulating the TSG under the previous Regulation 509/06 and

analyse the ways in which they have been interpreted and applied; third, it will suggest

reasons for the limited success of this scheme in the past; and fourth, it will explore the

recently enacted Regulation 1151/12, seeking to establish whether it addresses the pre-

existing flaws that fettered the TSG.

I Introduction

Union legislation reserving specific names for foods and beverages of a particular

quality or reputation has been abundant since the dawn of the European integration

process, eventually culminating in the introduction of a regulatory framework for

wines and spirits,1and four quality schemes for food products: protected denomina-

tions of origin (PDO), protected geographical indications (PGI),2traditional speciali-

ties guaranteed (TSG),3and optional quality terms (OQT).4

* Visiting Researcher, Dickson Poon School of Law, King’s College London, UK.

1See Council Regulation 479/2008/EC on the common organisation of the market in wine, amending

Regulations (EC) no. 1493/1999, (EC) no. 1782/2003, (EC) no. 1290/2005, (EC) no. 3/2008 and repealing

Regulations (EEC) no. 2392/86 and (EC) no. 1493/1999, 2008 O.J. L148/1; Council Regulation (EEC)

no. 1601/91 of 10 June 1991 laying down general rules on the definition, description and presentation of

aromatised wines, aromatised wine-based drinks and aromatised wine-product cocktails, 1991 O.J.

L149/1.

2Enacted by Council Regulation 2081/92/EEC on the protection of geographical indications and desig-

nations of origin for agricultural products and foodstuffs, 1992 O.J. L 208/1, subsequently repealed and

replaced by Council Regulation 510/2006/EC on the protection of geographical indications and desig-

nations of origin for agricultural products and foodstuffs, 2006 O.J. L 93/12.

3Enacted by Council Regulation 2081/92/EEC on certificates of specific character for agricultural products

and foodstuffs, 1992 O.J. L 208/9, subsequently repealed and replaced by Council Regulation 509/06/EC

on agricultural products and foodstuffs as traditional specialities guaranteed, 2006 O.J. L 93/1.

4Enacted by Regulation 1151/12/EU of the European Parliament and of the Council on quality schemes

for agricultural products and foodstuffs, O.J. 2012 L343/1.

bs_bs_banner

European Law Journal, Vol. 19, No. 4, July 2013, pp. 545–576.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

PDO and PGI concern products characterised by a defining bond to a particular

milieu géographique and bearing a geographical trade name. These quality schemes

have enjoyed some success and have received noteworthy scholarly attention;5moreo-

ver, they have lain at the heart of EU and international disputes.6

The TSG quality scheme aims to provide a protection regime for traditional food

products of specific character. Unlike its siblings, it has attracted little interest from

agricultural producers and has been largely ignored by academics; equally it has

received limited judicial attention.7

The OQT scheme establishes a second-tier of quality systems, regulating the

employment of horizontal, value-adding terms with a European dimension which

express characteristics or attributes shared by one or more categories of agricultural

products, such as ‘mountain product.’

The EU has recently enacted Regulation 1151/12,8which aims to rationalise the

regulatory framework governing its quality schemes and to further protect and

promote quality of agricultural products. With regard to the TSG, this legislative

measure largely replicates the pre-existing legal architecture yet also introduces sig-

nificant procedural and substantive law changes. These developments provide an

inviting opportunity to reflect on whether the new legislation elevates the TSG scheme

above its past shortcomings and sets a trajectory towards a brighter future.

This paper thus aims to first determine the systematic collocation of the TSG within

the EU legal framework for food nomenclature; second, to revisit this scheme under

the previous legislation, conducting a legal exegesis of the relevant norms and con-

sidering the ways in which they have been interpreted and applied; third, to identify

the reasons for the limited success of the TSG in the past; and, fourth, to chart the

reforms introduced by Regulation 1151/12 and to explore the extent to which they

address pre-existing difficulties.

II The EU Legal Framework for Food Nomenclature

Historically, the norms governing EU food nomenclature stem from multiple

sources: some derive from Treaty provisions; others are contained in food-specific

EU secondary legislation; still others emerge from case law. An analysis of the TSG

limited to an examination of the specific regulations which govern it would thus

only engender a partial understanding of this scheme. Accordingly, a preliminary

5For a comprehensive bibliography, see D. Gangjee, Relocating the Law of Geographical Indications

(CUP, 2012).

6For a historical overview, see V. Mantrov, ‘Protection Norms of Indications of Geographical Origin in

the Applicable Regulations: Recent Changes and the Necessity for Further Unification’, (2012) 43

International Review of Intellectual Property and Competition Law 174.

7The notable exceptions are D. Holland and H. Pope, EU Food Law and Policy (Kluwer, 2004),

at 127–129; C. MacMaolain, EU Food Law (Hart, 2007), at 117–119; L. Bently and B. Sherman,

Intellectual Property Law (CUP, 3rd edn, 2008), at 981–1001; C. Seville, EU Intellectual Property Law

and Policy (Edward Elgar, 2009), at 305–309. An empirical study was conducted by L. Joyet and

M. Delobel, ‘Protection des produits traditionnels rhônalpins) par la Spécialité Traditionnelle Garantie’

(2006) http://rhone-alpes.synagri.com/synagri/pj.nsf/46b50bbadf2cf901c1256c2f0041b9a7/28c531179ca

f020bc1257227003bb074/$FILE/Document%20de%20synth%C3%A8se%20STG.pdf. The only judicial

dispute involving a TSG was Trade Mark Registry Decision O-316-09, Axle Associates Ltd v Glouces-

tershire Old Spots Pig Breeders’ Club [2010] ETMR 12.

8Seen4supra.

European Law Journal Volume 19

546 © 2013 John Wiley & Sons Ltd.

historical reconnaissance is helpful in identifying the general principles that inform

this area of EU law, and in the acquisition of a systematic perspective.

The first two decades of Community foodstuff legislation were characterised by an

uncompromising pursuit of the common market objective. Both positive and negative

harmonisation approaches were utilised to overcome national ‘technical barriers’ to

the free movement of foods.9Stemming from Article 100 EC (Article 115 TFEU),

positive integration yielded an array10 of horizontal11 and vertical12 directives regulat-

ing food production, distribution and nomenclature. Based on a teleological interpre-

tation of Article 30 EC (Article 34 TFEU) and the strict construal of Article 36 EC

(Article 36 TFEU), negative harmonisation led to the casting aside of Member State

compositional rules13 and the curtailing of national regulatory schemes for indications

of geographical origin (IGO).14

Towards the end of the 1980s, however, several Member States expressed dissatis-

faction with Community foodstuff legislation and demanded stronger legal protection

for their typical products, in line with pre-existing national legislation.15 Concurrently,

it was increasingly felt that the common market for agricultural products, though

perfectible, had largely been achieved. As a result, the policy aims of Community

foodstuff legislation were reconsidered, shifting towards new objectives such as

quality, consumer protection and support to small agricultural producers.16 At first,

9For a detailed analysis, see A. Dashwood, ‘Hastening Slowly: The Communities’ Path towards Har-

monization’, in H. Wallace, W. Wallace and C. Webb (eds), Policy-Making in the European Community

(Wiley, 1977), at 277–281.

10 A General Programme for the adoption of several directives concerning food products was enacted by

Council Resolution of 28 May 1969, drawing up a programme for the elimination of technical barriers

to trade in foodstuffs, 1969 O.J. C 76/1. See A. Dashwood, n 9 supra, at 281–284.

11 Horizontal directives addressed transversal issues relevant to all foods. Among these, the most signifi-

cant was Council Directive 79/112/EEC relating to the labelling, presentation and advertising of food-

stuffs for sale to the ultimate consumer, 1979 O.J. L 33/1.

12 Vertical directives established ‘compositional rules’ for specific foods and are often referred to as

Community ‘recipe laws’. For an in-depth analysis of these directives, see O. Brouwer, ‘Community

Protection of Geographical Indications and Specific Character as a Means of Enhancing Foodstuff

Quality’, (1991) 28 Common Market Law Review 615.

13 The doctrine of mutual recognition established in Case C-120/78, Rewe-Zentral AG v Bundesmonopo-

lverwaltung für Branntwein [1979] ECR 649, paved the way for several cases challenging the compat-

ibility of Member States’ ‘compositional rules’ with Community law. See Case C-788/79, Italy v Herbert

Gilli and Paul Andres [1980] ECR 2071; Case C-27/80, Anton Adriaan Fietje v Arrondissementsrechtbank

Assen—Netherlands [1980] ECR 3839; Case C-261/81, Walter Rau Lebensmittelwerke v De Smedt PVBA

[1982] ECR 3961.

14 See Case C-12/74, Commission of the European Communities v the Federal Republic of Germany [1975]

ECR 181. Throughout this paper, the term ‘indications of geographical origin’ is used as a neutral

common denominator, adopting the terminology employed by the World Trade Organization Secre-

tariat in its ‘Review under Article 24.2’ IP/C/W/253/Rev.1.

15 In 1988, France sent a memorandum to the Commission criticising the Community foodstuff legislation;

this was shortly followed by supporting documents from Germany, Belgium, Luxembourg, the Neth-

erlands and Italy. Notably, in 1989, the UK sent a memorandum expressing support for the existing

Community policy. See O. Brouwer, n 12 supra, at 615.

16 This is explicitly expressed in several documents, eg Commission communication transmitted to the

Council and to the European Parliament, The future of rural society, COM (88) 501 final, as well as

Communication of the Commission to the Council, The Development and Future of the CAP, Reflec-

tions Paper, COM(91)100. This recalibration took place in diverse areas of EU law; for instance, at

around the same time, Community competition law shifted from the ‘single market objective’ to

‘consumer welfare’ and ‘efficient allocation of resources’; see P. Akman, ‘Searching for the Long-Lost

Soul of Article 82’, (2009) 29 Oxford Journal of Legal Studies 267.

July 2013 Traditional Specialities Guaranteed

547

© 2013 John Wiley & Sons Ltd.